47 N.Y.S. 289 | N.Y. App. Div. | 1897
The parties to this action were formerly husband and wife. Their marriage was dissolved by a decree of divorce granted at the instance of the wife on the 30th day of November, 1894. By a written contract between them, dated on the 9th day of November, 1894, but which does not appear to have been delivered to the wife until sometime after the divorce, the husband agreed to pay $2,000 a year to the wife in semi-annual installments of $1,000 each, in consideration of a release of her dower and ah undertaking on her part to save him harmless from any debts of her contracting, for necessaries or otherwise, during her natural life. ■ This contract further authorized and directed one John G. Jenkins, surviving executor of Abby E. Lay tin, deceased, to pay over to the plaintiff or her assigns the said sum of $2,000 a year, and to deduct the same from the moneys due and to grow due to the defendant from said estate.
The wife, who has married again, brings this action to recover
On the trial the defendant did not undertake to prove this defense quite as fully as it is pleaded. His counsel avowed his readiness to prove everything therein contained, except the averment that the agreement provided that the husband was thereafter to commit adultery.' With this modification, however, the contract _ still remained a contradi whereby the husband agreed to help his wife to divorce herself from him. by placing in her hands the necessary proof of adultery previously committed, without which, presumably, she could not succeed.
But the learned ¡ trial judge would ■ not allow the defendant to show that his wife entered into any such agreement. The defendant took the stand :as a witness in his own behalf, but .was permitted
Here the counsel for the defendant was laboriously endeavoring to ■ prove the second separate defense set up in his answer, as modified by the statement already mentioned, that he would not undertake to show that the agreement contemplated acts of adultery yet to be committed. Although some of the questions were leading in form, they were plainly thus framed so as to make the purpose of counsel manifest to the court, and they were not objected to on that ground. The exclusion of the evidence sought by this line of inquiry can only be justified, it seems to me, if we are prepared to hold that the averments of the answer which that evidence would tend to establish do not constitute a defense.
The averments of the second defense, as limited by counsel’s statement as to what he would attempt to prove thereunder, amounted to this, that the contract to pay the plaintiff $2,000 a year, upon which the present suit is.brought, was part and parcel of a larger contract made between the parties when they were still husband and wife, whereby, among other things, the husband undertook to furnish the wife with proof of past adultery on his own part, in order that she might divorce the defendant and wed another man whom she desired
For the error of the trial court in refusing to receive the proof offered by the defendant in support of his second separate defense, the judgment should be reversed and a uew trial granted, with costs to abide the event.
All concurred, j
Judgment and order reversed and new trial granted, costs to abide the event.